of April 24, 1992 No. 2
About practice of application of the legislation regulating the rights and obligations of persons which were injured from criminal offenses
Having discussed practice of application by courts of the legislation regulating the rights and obligations of persons which were injured from criminal offenses the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:
1. Draw the attention of courts that in their activities for consideration of socially dangerous infringement of victim's identity, its political, labor, housing and other personal and property rights and interests guaranteed by the Constitution of the Republic of Kazakhstan there are massive faults reducing the level of ensuring legal security of the victims.
2. Courts should mean that ensuring execution by the victims of the obligations assigned to them to be on challenge and to give truthful evidences, strict and consecutive observance of their rights promotes establishment of the truth on case and the resolution of the legal, reasoned and fair decision.
3. Person to whom moral, physical or property harm is done by socially dangerous act directly irrespective of whether person who made this act was established, made responsible is recognized to the victims. On cases on unfinished criminal activities (preparation for criminal offense, attempt at criminal offense) recognition of person by the victim is made in case of the actual causing moral, physical or property harm.
Person cannot be acknowledged injured if moral, physical or property harm was caused by voluntary consent to damnification (for example, in case of the address concerning criminal abortion, in case of bribery, etc.).
Acknowledged legal entity to whom the criminal offense does property harm can be the victim. In this case the rights and obligations of the victim are performed by the representative of the legal entity whose powers are drawn up by the relevant power of attorney.
4. Person to whom socially dangerous act does harm acquires the appropriate procedural law and the obligations established by the law only are assigned to it after the decree on recognition by his victim, civil claimant is issued. Therefore later from the moment of the beginning of pre-judicial investigation recognition of person by the victim, explanation to it the rights and obligations including the right to qualified legal aid, and in the cases provided by part two of Article 76 of the Code of penal procedure of the Republic of Kazakhstan (further - the Code of Criminal Procedure), on obtaining it free of charge for the purpose of complete and their timely realization shall follow without delay.
In the resolution on recognition of person by the victim it shall be specified what harm is done to it. In case of damnification of several types this circumstance shall be reflected in the resolution.
5. The victim who imposed requirement about compensation of the material damage including caused in connection with loss of the supporter, mutilation or other damage of health about the expenses incurred on burial about compensation of moral harm in terms of money, etc. shall be recognized as well as the civil claimant.
In case of plunder, damage or destruction of the material values which were legally at the owner (the employer, the keeper, etc.), has the right to make the civil action both the owner, and the owner of these values. The victim recognized as the civil claimant has the right to participate in judicial debate as the civil claimant, irrespective of participation in case of the prosecutor.
5-1. If property harm is done as a result of making of especially serious crime and the convict has no property sufficient for its compensation, court in case of satisfaction of the civil action, according to the statement of the victims or their legal successors according to part 7 of article 75 Code of Criminal Procedure shall issue the decree on payment to each of them of monetary compensation at the expense of means of the republican budget in full, but not over 150 monthly settlement indicators. The specified court order is subject to forced execution according to the procedure, the established legislation on enforcement proceeding.
6. On cases on criminal offenses which effect was the death of the person his close relatives, the spouse (spouse), adoptive parents adopted have the rights of the victim provided by the law, one of which taking into account the agreement reached between them is recognized injured, but not the representative of the victim. If insist a little from specified persons on provision of the rights of the victim, they can be also recognized as the victims. On cases on the premeditated murder committed in the presence of persons close to the dead, these persons shall be recognized as the victims.
In case of the death of the victim and in case of absence at him guardians, custodians, representatives of those organizations, organizations and persons can represent the close relatives, the spouse (spouses), adoptive parents adopted the rights it in criminal trial, on care or dependence of which it was. Close relatives, according to Item 11) of article 7 Code of Criminal Procedure, parents, children, adoptive parents (adopters), the adopted (adopted), full and not full brothers and sisters, the grandfather, the grandmother, grandsons are.
7. The victim can perform protection of the rights and legitimate interests independently or by means of the representative allowed to participation in criminal procedure by the body conducting criminal procedure. The lawyer based on the written notice of protection (representation), and any person can be the representative in this case as, competent by law to represent the interests of the victim based on the power of attorney including close relatives.
If the victim is the minor or person who is not knowing language of legal proceedings or on the physical or mental condition not having opportunity independently to protect the rights and legitimate interests, participation of the legal representative and representative is obligatory. In this case as the representative only the lawyer elected the victim or his legal representative is allowed. The concept of the legal representative is this in Item 13) of article 7 Code of Criminal Procedure.
In case of violation of this requirement the sentence, the court order are subject to cancellation in any case.
In case of interrogation of the minor victim aged up to fourteen years or aged from fourteen up to eighteen years participate, along with legal representatives, the teacher and the psychologist.
8. Participation in case of the victim, his legal representative or the representative of close relatives does not eliminate possibility of simultaneous participation in the same case of the representative of the victim on the agreement. At the same time it must be kept in mind that from the moment of recognition of person by the victim the right to the admission of the representative under the agreement in any stage of legal proceedings shall be explained to it.
Persons whose participation is forbidden by the law cannot be representatives.
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